Filed 5/7/13 In re M.M. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re M.M., a Person Coming Under the 

Juvenile Court Law.

 B240986

 (Los Angeles County

 Super. Ct. No. KJ36798)

THE PEOPLE,

Plaintiff and Respondent,

v.

M.M.,

Defendant and Appellant.

APPEAL from an order of the Superior Court for the County of Los Angeles. 

Merrill L. Toole, Temporary Judge. (Pursuant to Cal. Const. art. VI, § 21.) Affirmed.

Holly Jackson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, 

Supervising Deputy Attorney General, and Analee J. Brodie, Deputy Attorney General, 

for Plaintiff and Respondent.

____________________________________
2

SUMMARY

The only issue raised in this case is whether a probation condition ordering the

minor defendant, M.M., to participate in counseling was unconstitutionally vague and 

overbroad. The minor forfeited his claim by failing to present it to the juvenile court, and 

in any event the condition was not vague or overbroad. We affirm the juvenile court‘s 

order.

FACTS

In December 2011, the Los Angeles County District Attorney filed a petition 

alleging that the minor came within the provisions of Welfare and Institutions Code 

section 602, in that he committed the crime of misdemeanor sexual battery in violation of 

Penal Code section 243.4, subdivision (e)(1) [―Any person who touches an intimate part 

of another person, if the touching is against the will of the person touched, and is for the 

specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of 

misdemeanor sexual battery‖]. 

The minor denied the allegation, but the evidence presented to the juvenile court 

established all the elements of the crime. The minor, the female victim, and M.O, the 

victim‘s very close friend, were students at the same high school. During a class, all the 

students were playing a game requiring them to get up and change seats from time to 

time. When the victim got up to change seats during the game, the minor reached out and 

touched the victim‘s crotch area with his right hand. M.O. saw the minor touch the 

victim in her crotch area, and another student saw the minor touch the victim on her 

―thighs, butt,‖ but could not see ―how far in it went, but around that area.‖ When the 

minor touched her, the victim said, ―What the hell are you doing?‖ and went to the back 

of the classroom. She would not talk to M.O. or anyone else and ―was upset about the 

situation.‖ The next day, the minor brought a teddy bear to class and said he was going 

to give it to the victim ―[b]ecause he felt bad for what he did.‖ 

The victim reported the matter to the assistant principal, and then to the police, on 

the day after the incident. The investigating officer interviewed the victim, who was 

emotionally upset and cried. The officer interviewed the minor, who told him that he 
3

touched the victim‘s leg and she got upset. The minor told the officer that, just before the 

game began, he, the victim and M.O. had been talking about their sexual encounters on 

the previous weekend and that ―it turned him on‖ and he ―became sexually aroused.‖ 

The minor told the officer he saw M.O. touch or slap the victim playfully, and he wanted 

to ―play along with [the victim], as well, because he was . . . attracted to her, liked her, 

and wanted to ask her out on a date.‖ 

The juvenile court sustained the petition, placed the minor home on probation, 

and, as a condition of probation, ordered the minor to ―participate in a program of 

counseling.‖ Item 36 of the court‘s ―MINUTE ORDER – CONDITIONS OF 

PROBATION‖ states the condition: ―Participate in a program of counseling with or 

without parent/guardian. TO ADDRESS SEXUAL BOUNDARIES.‖ 

The minor filed a timely appeal.

DISCUSSION

The minor contends that the probationary term requiring him to attend counseling 

is unconstitutionally vague and overbroad. The minor bases this contention on the 

following colloquy among the court, the probation officer, and the prosecutor during the 

court‘s imposition of the terms and conditions of the minor‘s probation:

―[THE COURT]: Thirty-six, participate in a program of counseling.

―And, Mr. Gonzalez [apparently the probation officer], what was 

that program you were talking about? 

―PROBATION OFFICER: I just said the issue[,] counseling for –

―THE COURT: To address boundaries, sexual boundaries. Okay.

―[THE PROSECUTOR]: I think compulsion class or something.

―THE COURT: Yes. But not a formal sexual offender program. 

I‘m not asking for that. Definitely not.

―That‘s going to be number 36.‖ 

The court then set the matter for a progress report in six months, observing that ―we want 

to see from the counselor a report on the issues addressed and [the minor‘s] attendance 

and [the minor‘s] progress. . . . That should be attached to the next report.‖ The minor 
4

did not object in the trial court that he did not understand what the counseling condition 

meant.

The minor now asserts the counseling condition must be modified ―to require that 

[the minor] be notified of the precise class in which he is to enroll[,]‖ and that this court 

should either strike the condition or remand the case ―for a re-evaluation of the proper 

condition.‖ According to the minor, the counseling condition ―was ordered to address 

vague and conflicting issues; one being sexual boundaries; the other being compulsion 

control.‖ The minor says that ―a person of common intelligence may reasonably not 

know whether the class they are required to take actually addresses either or neither, or 

both of the issues addressed by the juvenile court in Condition 36[,]‖ and that he did not 

receive the ―fair warning‖ described in In re Sheena K. (2007) 40 Cal.4th 875, 890 

(Sheena K.).

We conclude the minor forfeited his claim, but even if he did not, the condition 

imposed was not unconstitutionally vague or overbroad. The applicable principles on 

both points were enunciated by the Supreme Court in Sheena K., where the juvenile 

defendant challenged a probation condition requiring that she ― ̳not associate with anyone 

disapproved of by probation‘‖ on the ground it was ―vague or overbroad and thus facially

unconstitutional.‖ (Sheena K., supra, 40 Cal.4th at p. 878, italics added.)

Sheena K. held that the defendant‘s constitutional challenge to her probation 

condition was not forfeited despite her failure to object when it was imposed by the 

juvenile court. (Sheena K., supra, 40 Cal.4th at p. 879.) The probation condition in 

Sheena K. presented ―an asserted error that is a pure question of law, easily remediable 

on appeal by modification of the condition.‖ (Id. at p. 888.) Sheena K. explained that 

―an appellate claim—amounting to a  ̳facial challenge‘—that phrasing or language of a 

probation condition is unconstitutionally vague and overbroad because, for example, of 

the absence of a requirement of knowledge . . . , does not require scrutiny of individual 

facts and circumstances but instead requires the review of abstract and generalized legal 

concepts—a task that is well suited to the role of an appellate court.‖ (Id. at p. 885, 

italics added.) Failure to present the claim to the juvenile court had no impact ―on the 
5

same proceedings  ̳downstream‘‖ and ―present[ed] an important question of law that . . . 

is likely to be reviewed on the merits by the appellate court notwithstanding the 

applicability of the forfeiture rule.‖ (Id. at p. 888.) ―For those reasons, we conclude 

defendant‘s claim that her probation condition was unconstitutionally vague and 

overbroad was not forfeited by her failure to raise it in juvenile court.‖ (Id. at p. 889.)

But the court‘s discussion shows that not all claims of unconstitutional vagueness 

are excepted from the forfeiture rule. Thus, ―a probation condition may not be patently 

unconstitutional but may suffer nonetheless from vagueness or overbreadth. Or in some 

instances, a constitutional defect may be correctable only by examining factual findings 

in the record or remanding to the trial court for further findings.‖ (Sheena K., supra, 40 

Cal.4th at p. 887.) On the other hand, ―a challenge to a term of probation on the ground 

of unconstitutional vagueness or overbreadth that is capable of correction without 

reference to the particular sentencing record developed in the trial court can be said to 

present a pure question of law.‖ (Ibid.) That was the case in Sheena K., but it is not the 

case here, where the minor‘s claim of unconstitutional vagueness requires ―reference to 

the particular sentencing record‖ (ibid.) and does not ―amount[] to a  ̳facial challenge‘‖ 

(id. at p. 885), however he may label it.

Moreover, the court in Sheena K. added an express caveat to its conclusion that the 

defendant‘s vagueness and overbreadth claim in that case was not forfeited. The court 

said: ―We caution, nonetheless, that our conclusion does not apply in every case in 

which a probation condition is challenged on a constitutional ground. As stated by the 

court in Justin S. [In re Justin S. (2001) 93 Cal.App.4th 811], we do not conclude that  ̳all 

constitutional defects in conditions of probation may be raised for the first time on 

appeal, since there may be circumstances that do not present ―pure questions of law that 

can be resolved without reference to the particular sentencing record developed in the 

trial court.‖ [Citation.] In those circumstances, ―[t]raditional objection and waiver 

principles encourage development of the record and a proper exercise of discretion in the 

trial court.‖ [Citation.]‘ [Citation.] We also emphasize that generally, given a 

meaningful opportunity, the probationer should object to a perceived facial constitutional 
6

flaw at the time a probation condition initially is imposed in order to permit the trial court 

to consider, and if appropriate in the exercise of its informed judgment, to effect a 

correction.‖ (Sheena K., supra, 40 Cal.4th at p. 889.)

We believe this is a case for application of Sheena K.‘s cautionary directive. The 

circumstances here do not present a ― ̳―pure question[] of law‖‘‖ that can be resolved 

without reference to the sentencing record in the trial court. (Sheena K., supra, 40 

Cal.4th at p. 889.) The asserted error—―conflicting topics‖ for counseling rendering the 

probation condition unconstitutionally vague—is correctable only by remanding the 

matter to the trial court to determine, as the minor himself says, ―the precise class in 

which he is to enroll.‖ The minor expressly requests a remand ―for a re-evaluation of the 

proper condition.‖ In these circumstances, the minor forfeited his claim by failing to 

object to the constitutional flaw he perceives in the trial court‘s probation condition. (See 

In re Luis F. (2009) 177 Cal.App.4th 176, 181, 182 [a challenge on grounds of vagueness 

or overbreadth ―is forfeited by failure to object unless the error is one that is  ̳capable of 

correction without reference to the particular sentencing record developed in the trial 

court‘‖; under Sheena K., the minor defendant‘s objection ―would appear to have been 

forfeited, despite his labeling it in part a facial challenge‖].)

Even had the minor not forfeited the point, we would conclude the condition 

imposed was not unconstitutionally vague or overbroad. The rule is that a probation 

condition ― ̳must be sufficiently precise for the probationer to know what is required of 

him, and for the court to determine whether the condition has been violated,‘ if it is to 

withstand a challenge on the ground of vagueness.‖ (Sheena K., supra, 40 Cal.4th at p. 

890.) 

Here, the minor complains that the probation condition does not provide ―fair 

warning‖ or ―fair notice‖ of the type of counseling required of him. We disagree. Even 

if we assume some ambiguity was created when the court said ―yes‖ after the prosecutor 

said, ―I think compulsion class or something[,]‖ any such ambiguity was resolved by the 

juvenile court‘s minute order. Sheena K. itself makes this clear. The court pointed out 

that, in cases involving probation conditions prohibiting contact with persons 
7

disapproved of by the probation officer or parents, several courts of appeal ―have 

recognized that a probation condition that otherwise would be deemed vague may be 

constitutional because the juvenile court offered additional oral or written comments 

clarifying that the minor must have knowledge of the persons disapproved of by the 

authorities.‖ (Sheena K., supra, 40 Cal.4th at p. 891, boldface and italics added.) In one 

of those cases, the appellate court rejected the minor‘s vagueness challenge ―because the 

juvenile court‘s minute order included the  ̳crucial words, ―known to be‖‘‖ disapproved 

of by the authorities. (Ibid., citing In re Byron B. (2004) 119 Cal.App.4th 1013, 1018 

(Byron B.) 

As Byron B. said: ―[U]nlike the juvenile court‘s oral ruling, its minute order did 

include the crucial words,  ̳known to be.‘ The clerk‘s minutes and the reporter‘s 

transcript are to be harmonized, if possible. [Citation.] In this case, the clerk‘s transcript 

simply clarifies a point that the reporter‘s transcript left ambiguous. We conclude that 

the minute order correctly recites the juvenile court‘s ruling.‖ (Byron B., supra, 119 

Cal.App.4th at p. 1018.)

The same is true in this case. The minute order provides notice to the minor that, 

as a condition of probation, he must ―[p]articipate in a program of counseling . . . TO 

ADDRESS SEXUAL BOUNDARIES.‖ Accordingly, as in Byron B., whether or not the 

minor forfeited his vagueness contention, ―the probation condition, as stated in the 

minute order, is not . . . overbroad[] or void for vagueness.‖ (Byron B., supra, 119 

Cal.App.4th at p. 1018.)
8

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

WE CONCUR:

RUBIN, Acting P. J.

FLIER, J.